Ofcom acts on silent calls

Ofcom has now pronounced on the measures it expects call centre operators to take to minimise silent/abandoned calls and escape regulatory action. We report on the five golden rules and Ofcom’s policy going forward on ‘persistent misuse’ of electronic communications network/services.

Topic: Telemarketing

Who: Ofcom and the Direct Marketing Association

Where: London

When: March 2006

What happened:

Ofcom published its final "Statement of policy on the misuse of an electronic communications network or service".

The Statement's main focus is actually on a narrower issue, which is Ofcom's policy towards silent and abandoned calls in the telemarketing sector.

Underpinning the consultation exercise which has led to this are Sections 128-130 of the Communications Act 2003. These empower Ofcom to take enforcement action when it has reasonable grounds for believing that a person (either an individual or a legal entity) has persistently misused an electronic communications network or electronic communications service. A person misuses a network or service if the effect or likely effect of their behaviour is to cause unnecessary annoyance, inconvenience or anxiety to another person.

Silent call distress

The issue of silent and abandoned calls and the distress they cause has become a growing public concern and this Statement sets out the factors Ofcom will take into account in deciding whether or not to take enforcement action under its "persistent misuse" powers.

Most silent calls arise when call centres misuse predictive diallers to generate more calls than their agents can handle. When a consumer answers such a call and no agent is available, the consumer either hears silence or the call is automatically terminated, resulting in an abandoned call.

Risk reduction procedures

The various procedures that call centres can adopt to minimise the risk of action being taken against them by Ofcom include, according to the Statement:

limiting abandoned calls to a rate not exceeding 3% of calls made;

playing a brief information message giving details about the call in the event that a call is answered before an agent is available;

maintaining a 72 hour period before a number receiving an abandoned call may be called again;

providing calling line identification (CLI) information on outbound calls, so that consumers can know the number that is calling;

maintaining a minimum 15 second ring time.

Process

The Statement also sets out how Ofcom will set about enforcement action if a case arises. The first stage is for Ofcom to issue a "notification" to the person who it has reasonable grounds for believing is breaking the rules.

Once the period allowed for representations by the recipient of the notification has expired, Ofcom has three options. It can decide whether or not to issue an enforcement notification to the misuser under Section 129 of the Act. It can impose a penalty under Section 130 of the Act or it can issue an enforcement notification and impose a penalty.

Civil proceedings

The duty to comply with an enforcement notice can be enforced through civil proceedings for relief including a remedy for the consequences of the conduct in question. What would be taken into account here is the loss and damage suffered and/or the annoyance inconvenience or anxiety experienced.

Ofcom has certainly moved with reasonable dispatch in this regard, although it has to be said that its powers under the Communications Act have existed for some years and there has still not yet been much sign of enforcement action, even under the current regime with the £5,000 maximum penalty.

It remains to be seen whether this policy statement, perhaps accompanied by an increasing of the penalty to £50,000, will lead to a stepchange in enforcement action. Meanwhile the DMA has done its bit by making amendments to its own code which track the five recommended steps for avoiding enforcement action set out in the policy statement.

More laws against "persistent" marketing

As a final footnote, it is interesting to contrast the provisions of Section 128-130 of the Communications Act 2003 with one of the 31 "always prohibited", business to consumer commercial practices set out in the EU Unfair Commercial Practices Directive, due to be law in the UK by December 2007.

Nestling in the list of 31 commercial practices in relation to consumers which must be prohibited by all member states by the end of 2007, is "Prohibited commercial practice 26" which reads:

"Making persistent and unwanted solicitations by telephone, fax, email or other remote media."

Unlike the Communication Act provisions, there is no requirement here to show that the effect of the persistent misuse is to cause unnecessary annoyance, inconvenience or anxiety to another person. Whether "PCP 26" becomes a preferred weapon in the armoury of those fighting excessive marketing remains to be seen.